CHURCH CORPORATIONS AND THE CONFLICT OF LAWS IN ANTEBELLUM AMERICA
Scholars frequently describe American religious disestablishment using commercial analogies, reckoning that states "privatized" religion or subjected churches to "free-market competition" by making them more like commercial businesses, yet this article demonstrates in part how ch...
| Autore principale: | |
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| Tipo di documento: | Elettronico Articolo |
| Lingua: | Inglese |
| Verificare la disponibilità: | HBZ Gateway |
| Journals Online & Print: | Caricamento...
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| Fernleihe: | Fernleihe für die Fachinformationsdienste |
| Pubblicazione: |
Cambridge Univ. Press
[2017]
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| In: |
Journal of law and religion
Anno: 2017, Volume: 32, Fascicolo: 2, Pagine: 263-284 |
| Altre parole chiave: | B
disestablishment
B Corporations B Conflict of laws B Church and state B Property |
| Accesso online: |
Accesso probabilmente gratuito Volltext (Resolving-System) Volltext (doi) |
| Riepilogo: | Scholars frequently describe American religious disestablishment using commercial analogies, reckoning that states "privatized" religion or subjected churches to "free-market competition" by making them more like commercial businesses, yet this article demonstrates in part how churches pioneered many of the corporate devices that came to define American enterprise after the Civil War. Such descriptions are thus anachronistic. Antebellum jurists were not concerned about the similarity of churches to businesses, but rather their similarity to states, and the republican fear that churches could be rival sovereign states at first structured the law of disestablishment and incorporation. In most states, churches gained rights of general incorporation but faced significant limitations on their corporate governance and property holdings. In Dartmouth College, the Marshall Court reimagined religious societies as private owners who, instead of governing as rival sovereignties, administered property in trust under their charters. But with the vague charters of general incorporation, state judges were left without a definite source of law to adjudicate church disputes. This article argues that courts thus allowed trust law to function as a conflict of laws analysis: Judges treated religious doctrine as a foreign legal system with rules that could be ascertained and accorded respect in American courts. Such a move created a positive, corporate right of religious liberty that becomes obscured if one conceives of religious freedom only as an individual right to be asserted against the state. |
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| ISSN: | 2163-3088 |
| Comprende: | Enthalten in: Journal of law and religion
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| Persistent identifiers: | DOI: 10.1017/jlr.2017.31 |